动产交付制度研究

交付是动产物权的主要公示方法,也是源自古代仍活跃于现代的物权制度。动产交付的主要功能是公示,其法律效力有对抗要件主义和生效要件主义之别,我国立法应坚持生效要件主义的一贯立场并将之在物权法中做彻底性规定,确认现实交付、简易交付、拟制交付三种交付类型,不规定占有改定和指示交付。交付行为属于表意行为与事实行为的结合,当事人交付动产的意思表示与交付动产的义务是不同的两个问题。动产交付的公信力即动产占有的公信力,主要表现为物权的正确性推定和对第三人的信赖利益的保障。动产交付请求权性质上为债权请求权,包括请求交什的权利和请求更正交付的权利。我国物权法还要赋予第三人以交付异议请求权。

A Study on the Movable Property Delivery System

With the main function of public declaration, consignment is the main method of movable property. As to the legal effect of consignment of movable property, there are two different standing points, the antagonism and the effectism. We should persist in effectism, and stipulating the realistic consignment, simple consignment and fictional consignment, other than alteration of possession and indicative consignment. Consignment is combined with representation and factual act and principalies' representation is different from its duty of consignment. The legal force of public credit of the consignment namely of possession to movable, is mainly embodied in presumpting the property right and guaranteeing the legal force of pub credit of the third party. In nature, the right to petition of consignment is a kind of right to petition of obligatory right, including the right of requesting to consign and to correct the consignment. The right to petition of objecting consignment should be granted with the third party.